Yesterday, the New York Times published an article on the use of athlete’s tattoos in video games. While the article regurgitates the usual commentary on the existing current state of the law with respect to tattoos, video games and copyright, it fails to really move the ball forward. The article implies in the very last paragraph (“My tattoos are a part of my persona and identity,” Mr. James wrote in a declaration of support for Take-Two and 2K Games. “If I am not shown with my tattoos, it wouldn’t really be a depiction of me.”), but without going further, that tattoos are part of one’s persona. This got me thinking. Why not use the Right of Publicity in this situation? So let me propose this here, and perhaps start a discourse on how the law should be interpreted and applied by courts.

When a tattoo, created by an artist, is inked onto human skin, the tattoo becomes indelibly fixed on and associated with its human host (e.g., a professional athlete), despite the fact that the tattoo may be conceptually separable from the host. It is generally agreed that tattoos, once inked onto skin, come with an implied license that the host can publicly display the tattoo, including on television and at public events. But what about further downstream uses, such as in video games where host and tattoo are digitally recreated?

Importantly, tattoo artists are not mere innocents in this situation. Tattoo artists do not blindly apply tattoos. They are not unaware of the fact that the person on whom they are permanently affixing a tattoo is a professional athlete or celebrity of some sort. Tattoo artists must necessarily meet the person on which they are applying each tattoo. Thus, tattoo artists cannot be said to be unaware of the host’s identify and/or the context in which the tattoo may be used. They are aware, or at least complicit.

By virtue of the artist’s awareness of the host and the host’s celebrity status, any publicity showing the tattoo on the host in such impliedly licensed events benefits the host–the tattoo becomes part of the host’s persona. Stated differently, the host automatically receives from the tattoo artist an implied license to depict the tattoo as part of the host’s right of publicity. As a caveat, this might apply only to publicity visible tattoos and not to tattoos in more (ahem) discrete locations on the host.

Thereafter, when the tattoo is depicted as part of the host’s persona (e.g., recreated in a video game or as a key element in a movie), such depiction falls within the scope of the host’s right of publicity, and a license is required only from the host for such use. If the tattoo is depicted in isolation from the host, e.g., as a separate work of art not associated with the host’s persona, a license is required only from the artist for such use.

I don’t have time right now to write an entire law review article on this, but I think the economics work out, too. Tattoo artists will be able to charge higher fees based on the notoriety they receive from hosts’ use of their tattoos, and may also be able to charge higher fees when the recipient of a tattoo is a known celebrity or athlete. The market will correct the fee structure once the law is correctly applied.

One unanswered question… how would this affect the “Hangover II” situation? That is, Mike Tyson’s tattoo was recreated on actor Ed Helms’ face. The recreation of the tattoo in the film was intended to reference Mike Tyson’s persona, but was recreated independent of Mike Tyson himself. Whose license/permission is needed in such a context? Mike Tyson’s? Or the tattoo artists? The lawsuit settled, so the court never weighed in. Even if they did weigh in, courts are not presently applying the law as suggested above. I haven’t worked the “Hangover II” situation out yet, and invite others to chime in on this. Perhaps we can work out a more thorough solution than this brief proposal.

In any event, in view of LeBron James’ declaration in support of Take Two and 2K Games (see above link), I might not be the only one proposing this sort of theory. I hope this case goes the distance, and we get some decent law that resolves the issue once and for all.

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